Apr 11, 2012

The Bucchere Report

I wasn’t planning on writing about this. I didn’t want to
because I felt I’m a bit too close to the conflict and I didn’t feel that this
would be accepted as a neutral analysis of the events. But as I saw the anger,
and the accusations, and the unfounded speculations flying left and right in
comments under every article or blog that mentioned these events, I felt I needed to do it. I must say,
the level of journalism and reporting with regard to this event has set the bar
extremely low for what I consider news reporting, or even news blogging.

I hope to lay out the facts as we know them, and those facts
that we can ascertain from the very strong circumstantial evidence, and take an
objective, outside view of what transpired that morning, without assumptions,
without hate, without anger, and most importantly, without any preconceived
notions of what may have happened.

I’m not sure if any of the below will make even a dimple in the opinions of the lynch mob that has
apparently formed over this, but if it causes at least one person to view the
situation in a different light, it’s worth it.

Full disclosure: In
2010 and 2011 I was an official member of Mission Cycling. I am not this year
due to other commitments and constraints that I have. I have ridden the MC AM
Headlands Raid dozens, and dozens, and dozens of times. I have ridden it as part of a group with
Chris Bucchere dozens, and dozens of times (edit: I was not on the ride that morning). We became acquainted
through our rides together. I’m not claiming to be his close friend or know
everything to know about him. I’m not claiming to have some insight into his
personality or who he is as a person. All I have is my impression of him based
on our interactions on these morning rides, which is that he’s an intelligent
guy, who likes to joke and goof around. He’s always been nice in all our
interactions and never did he give me cause to think, “man, this guy is an
asshole.” And I’m also a lawyer – but not Chris’ lawyer, obviously.

Now that you know where I’m coming from, here’s my take on
the situation.

The facts

The morning of March 29, CB was coming back from an MC
morning ride. There is no reason to doubt that he was coming down Divisadero
toward Market Street. There is also no reason to doubt that he crossed Market
Street and as he was crossing Market Street, he collided with a pedestrian who
later died in the hospital.

We know that sometime after the accident, CB sent out an
email to a list of recipients close to 1000 detailing the events of that
morning. Before I get to that email, I must say that the carve job the
papers did on it is absolutely amazing. Additionally, we also know that at the
time the email was sent, CB had no idea exactly how serious of a condition the
pedestrian was in. He had no way of knowing that the pedestrian would die.

What can be inferred from the email and the early accounts,
before any speculation began, is that CB hit his head in the collision, was
blacked out and also taken to the hospital -- the same hospital as the pedestrian.

My point here is the guy hit his
head earlier in the day before writing the email. So two flags should come up
for anyone reading that email: first, clearly not the best judgment was used in
sending it out and definitely in drafting some parts of it; second, it is not
to be taken as a picture perfect account of events. Eye-witness testimony is
perhaps the most inaccurate testimony a court ever hears. Add to that a
traumatic event and possible head trauma, and things get fuzzy.

Another thing I’d like to point out,
CB actually mentions the victim twice in the email, not once like most outlets
report. He first says: “I really hope he ends up OK.” And then two paragraphs
later, after listing his own injuries, he writes:
“The guy I hit was not as fortunate. I really hope he makes it.”

What color was the light? That’s a fact we don’t know. CB
writes that it was yellow as he entered the intersection, but as I mentioned
above, those accounts might not necessarily be accurate due to the trauma during the even. It is unlikely that the light was red when he entered the intersection
because I ride through that crossing two times a day and he would have been run over by
a car at least twice before he reached the other side. Likely, the truth is
somewhere in the middle. I’m not going to guess what the color the light was
because the only thing guessing has done in this case is flamed more hatred.

The ode to the helmet. The fact is it was written. Not the
best judgment was used in writing it, but it was written before the pedestrian
died, before CB realized how serious these events were going to be,
and at a time where he most likely was not entirely “with it.” Had I just been
to a hospital after losing consciousness and seeing how I just hurt another
human being, I’m not sure what my psychological reaction would be. I don’t
claim to know what CB’s was, but what I am saying is he shouldn’t be vilified
for it, not without more. To say he was dumb to write it is fair, to say he’s an evil, callous
human being is in my opinion going a step too far. Which brings us to the next
segment of this saga.

The spinathon

From the facts above -- the only facts known or those that
can be inferred from circumstantial evidence with any degree of certainty -- a
whole other pile of information has come forth, literally out of nowhere. Here are some examples:

He was riding a fixed gear bike with no brakes. This
originated in a comment on a forum or on a blog and spun completely out of
control. I will admit that currently, there are no public facts (word public is key, read between the lines here) stating what
kind of bike he was riding, but there is also absolutely NOTHING to suggest he was
riding a bike with no brakes. Why make this assumption and sell it as gospel? Moreover, cops have CB's bike, a part of the email conveniently left out by all the papers and blogs.

He was racing another rider that morning. This came by way
of a “witness account.” Someone claims they saw CB and another rider blasting
through stop signs and red lights. If there were two riders, wouldn’t one of
them still be on the scene? There were no reports of a fleeing rider. All
information suggests he was traveling alone down Divisadero. The witness
account sounds completely made up. If the witness saw CB and another rider running
lights and stop signs, the car would have had to follow them and also run red
lights. If the car stopped at the red light, the bikes would have been out of
the line of sight, or if they were in the line of sight, wouldn’t the driver
had also seen the accident that was at the bottom of the hill? And why did this motorist wait a whole week to come forward?

Moreover, anyone who’s a cyclist knows this is BS because
all of us had instances where we’ve ridden with someone many times, but when we
run into the person on the street in street clothes we don’t recognize him. For
some driver in a car at 8 am – when bike traffic is very heavy – to connect the
dots between two cyclists traveling together and CB is specious at best.
Lastly, this witness report came in about a week after the events, when all
tempers were flying high, and it is wholly possible that some
“well-intentioned” individual was trying to help the DA make up his mind as to
whether charges should be filed.

Strava did it! This is America, and in America no one is
responsible for his own actions. The coffee was too hot, the knife was too
sharp, the gun was too loaded and the building was too tall – find a scapegoat
and sue. That’s the motto! (Feel free to enjoy a bit of irony as this is written by a lawyer)

Yes, we know Chris was on Strava. We know that the
segment he was riding used to have a word “bomb” in it. We also know that “bomb” is part of cycling slang that
has at least two meanings. First: I bombed that descent. This means that I went
down a hill REALLY fast. Second: That’s a bombing descent. This usually means
the descent is steep and has the potential to take you to high speeds. And
that’s all we know. Unless someone out there has ESP and can read CB’s mind on March 29, don’t assume he was going down that hill in an attempt to set
a new fastest time. And if you are going to assume that, don’t claim that
anyone other than he himself made the decision to go down that hill as quickly
as he did.

In law, there is a concept called the attractive nuisance
doctrine. It applies where a dangerous element is present at a site that would
normally attract kids. There is a reason it only applies to minors.

CB is an [insert a demonizing term]. No, he isn’t. If you
spend five minutes in conversation with him, you'll know he isn’t. But it’s easy
to hate someone based on an image you construe in your head based on inaccurate
reports and accounts.

Have we not learned yet? Anyone remember Richard Jewell? He
was the man falsely accused and subsequently completely cleared of the 1996
Atlanta bombing. Even now, George Zimmerman has had his life ruined by early
accounts of what transpired that night. And now that conflicting accounts of
the story have come to light, it might be too late to unring the bell that was
rung. In this country, we continuously try people in the press and convict them
in the public’s eye. Then we forget about what we have done and move on to
other current events, but the scars we leave on a person we condemn without all
of the facts before us do not go away. This obviously goes beyond CB and this accident.

The hatred

“Hatred and anger are like drinking poison and expecting the
other person to die.” Remember that, you’ll live longer. The level of hatred
that I have seen over the last few weeks has been astounding and depressing. It
saddens me to know that so many human beings have it within themselves to hate
with such strength, or at least that’s what comes through in the comments they
post.

On some level, given the information that is funneled to the
audience, I can understand a level of disdain for CB. However, I don’t
understand why we as cyclists are hated with such ferocity. We don’t all break
laws. We aren’t all arrogant assholes who think we’re better than our motorist
friends. In fact, most of us cyclists are also drivers and pedestrians, the
reverse of which is far from true.

When I ride down the street and someone without signaling
cuts me off by turning to the right in front of me, I get mad at the person,
but I don’t hold it against any other driver on the road. I cannot understand
why this is the complete opposite with cyclists. If one breaks the law,
everyone must do it too. If one is reckless, the rest are as well. It’s like
we’re all members of the same political party.

I know that as a whole, we as cyclists need to do better
with regard to sharing the road, just like motorists need to be better about
sharing the road (give me more than 5 inches when you pass me on the road, please). As more and more cyclists flood to the roads, the
infrastructure needs to catch up. Lights need to be longer, so that if a
cyclist enters on yellow, he has time to cross before the light changes. Or if
a cyclists comes to an intersection with a red light that can be only tripped
by a heavy metal car, what is he to do but run the red light (assuming no car
comes behind to set it off)?

The main point here is that pedestrians, cyclists and
motorists need to work together to make our roads safer. This means we have to
obey laws, but also put ourselves in the shoes of the other and not lump entire
groups of people together as if they are a projection of one person’s actions.

Take an honest look at yourself. If you’re a cyclist who
normally rolls through stop signs and disobeys red lights, make an effort to be
better. This will keep you safer and will build goodwill for all of us. If you’re
a driver who sees a cyclist break a law, don’t extrapolate and don’t vilify. In
all likelihood, the drivers in the car behind you and the one in front of you
probably exceeded the speed limit, changed lanes or turned without signaling,
or ran a sign in the last 20 minutes. Heck, you might be one of those drivers.
And if that’s the case, you too try to be better. As pedestrians, understand
motorists and cyclists. Give us the right of way if we’re already crossing an
intersection. It scares us when you come onto the roadway – we really don’t
want to hit you.

All of this seems so common sense that I feel silly writing
it out, but as I walk, ride or drive I see these principles violated with
extreme regularity by cyclists, motorists and pedestrians alike.

I hope this incident teaches us not only to be safer
cyclists and reminds us that our actions can oftentimes have heavy
consequences, but that it brings all sides to the table for a calm discussion,
resulting in a better environment for everyone. This tragedy already claimed
one life, let’s make an effort to stop it there.

10 comments:

Thanks for taking the time to write this posting. We do need to work together (Cyclists, pedestrians, and motorists). I seldom ever drive anymore, and most of my trips are done now by bike and on foot, so being safe and sharing the road is paramount to me. Best regards, John

It seems to me the key fact to come from the recent video is that Chris and the pedestrians entered the intersection at the same time. There's a two second delay from red light to walk light, so either Chris totally blew the red, or the pedestrians jumped the "walk". While the video might not show the traffic light, there should be sufficient clues (like cross-traffic) to tell if he blew it by a full two seconds. The video should also provide a better estimate of his speed than was available from the unreliable iPhone GPS, which is notoriously bad in urban/hilly environment. With an intersection that takes 4 seconds to cross at 28 mph, facing the danger of cross-traffic with only a 2-second red-red phase, it's easy to see why he'd be interested in getting across as quickly as possible, even if the result proves he should have exercised greater care.

Oh, I wish it was only those two facts. They are also operating under a plethora of unfounded assumptions. As far as the video, I'm going to withhold judgment until I actually see it. What some perceive as a tucked position, others may see as a normal riding style. As was pointed out in the comment above, at the time he entered the intersection (but before any pedestrians set foot onto the sidewalk) it would have been perfectly natural for him to try to get across as quickly as possible. I think most of this case, as it pertains to criminal liability, will hinge on whether he violated a traffic law with respect to the Castro/Market intersection.

"unfounded speculations flying left and right in comments under every article or blog that mentioned these events, I felt I needed to do it. I must say, the level of journalism and reporting with regard to this event has set the par extremely low"

Fascinating.

"From the facts above -- the only facts known"

Interesting.

"We know that sometime after the incident, CB sent out an email."

Indeed.

You state the above, spend a section on the email, and yet there has been NO PROOF THAT CB WROTE THAT EMAIL.

Unless your being a State of California LAWYER means you are stating on the record, that it is a FACT that Chris Bucchere DID write that email circulating the web.

Dear Shrug, if that's your real name. I am indeed an attorney licensed to practice law in CA. However, from your comment, I can safely make one of two guesses: A. you are not an attorney; or B. you are an attorney, but you forgot everything you ever learned about criminal procedure or rules of evidence. So which is it?

Did you learn words like "record" and "subpoena" by watching Law and Order? What record? There isn't even a legal proceeding. Subpoena? For what information? The DA and the cops already said they saw the email and consider it to be from Chris. I'm sure they have other ways to authenticate the email than by subpoenaing me. And frankly, I don't really care if they do. You make "subpoena" sound like it's a death sentence. Remember, I'm a lawyer - a courtroom is not a foreign place to me, and if I can in any way (I personally cannot imagine how) help aid the resolution of this, they don't even need to send me a subpoena, I'll gladly come with a phone call.

I know he wrote that email because I was one of the recipients, just like I was a recipients of many other emails he's written over the last couple years. Which is how I could quote things from it not quoted in newspapers. Of course I didn't sit there and watch him write it, but if we're going that route, how do you know any of the emails you get are actually from people who supposedly sent them?

Shrug - there has been no public "proof" that Bucchere wrote that email release publically, but there has been plenty of proof in less public forums.

However, here are some public facts.

Fact - Chris Bucchere was the cyclist who struck Mr. Hui

Fact - when the email came out, the name of the cyclist had not been released by the SFPD.

How is it that an email describing the crash in detail comes from a Google account registered to Chris Bucchere, the person who was involved in the accident, at a time when nobody knew who was involved in the crash other than Bucchere, SFGH, SFPD, and perhaps Bucchere's family? On an email list that while public, requires one to register, and on which Bucchere had posted many times in the past under the same email address?

There will be no need to subpeona Vitaly Gashpar, Dylan DiBona, Google, or anyone else. Bucchere will not dispute that he wrote that email.

Hello, I'm not a cyclist nor do I have an agenda against cyclists. I have not read his rant or seen video.

I felt compelled to comment since I've lived in S.F. for more than 40 years, and for a time, just 6 blocks north of that intersection.

I drove professionally for 20+ years and am familiar with all of the major intersections in the City. The Market/Castro intersection is one of the busiest, if not THE busiest in S.F.

The defendant, was familiar with this intersection. I don't think this can be disputed.

Many of the rules and laws governing the driving of cars also pertain to bikers. The defendant was simply going too fast to stop, an admission he himself made. Coupled with his familiarity with the intersection and the hordes of pedestrians that spring out, I believe he acted irresponsibly.

The bikers have a responsibility to operate in a safe manner, and not be a menace or danger to the public.

The downhill slope of Divisadero allows vehicles and bikes to gain a higher rate of speed of course.

I haven't heard that there was an estimate of his speed, but if you can't stop ahead of a crosswalk while understanding the dynamics of the intersection, then you are biking/driving recklessly.

He spoke of his dilemma of being in the intersection when the light changed to red .......... and being unable to stop due to his "being way too committed".

If many bikers follow this line of reasoning, pedestrians are in trouble. I know, I know, he probably said that after a bang in the head. That doesn't mean he didn't actually believe it, and used it as one of his everyday riding rules.

The defendant has just pleaded guilty to felony vehicular manslaughter. However, a plea bargain results in zero jail time and 1,000 hours of community service.

His attorney was fantasizing with a misdemeanor guilty plea. At least he is now a convicted felon. Good luck holding a job or even getting hired for a decent job. Let this be a lesson to reckless bikers and automobile drivers.